Child suffering non-accidental injury - insufficient evidence to identify perpetrator - test of real possibility or likelihood to be applied

In re A (A Child) (Care Proceedings: Non-Accidental Injury): CA (Dame Elizabeth Butler-Sloss, President, Lords Justice Thorpe and Clarke): 1 July 2003

At the first stage of the split hearing in care proceedings, the judge had found that an 11-week-old baby had been injured non-accidentally and that, since there was insufficient evidence to identify the perpetrator, the parents, the night nanny and the maternal grandmother could not be excluded.

The local authority and the night nanny appealed on the grounds that, in requiring himself to be satisfied that there was no possibility that the relevant person had injured the child, the judge had applied the wrong test.

Sally Cahill QC (instructed by the Head of Legal Services, North Yorkshire County Council, Northallerton) for the local authority; David Hershman QC and John Myers, solicitor-advocate (instructed by Jones Myers Gordon, Leeds) for the parents; Jonathan Cohen QC and Justin Ageros (instructed by Murrays Partnership) for the night nanny; Eleanor Hamilton QC (instructed by Gordons Cranswick, Bradford) for the maternal grandmother; Sally Bradley QC and Gillian Matthews (instructed by Crombie Wilkinson, York) for the child by his guardian.

Held, allowing the appeals, that the test was that of a real possibility or likelihood, in the sense of a possibility that could not sensibly be ignored, that one or more of a number of people with access to the child might have caused the injury; that the test of 'no possibility that' was patently too wide and might encompass anyone who had even fleeting contact with the child in circumstances in which there had been the opportunity to cause injury; and that, since there was no real possibility that either the night nanny or the maternal grandmother could have caused the injuries, the judge's assessment could not stand.

Blood test - paternity - inference to be drawn virtually inescapable

Secretary of State for Work and Pensions v Jones: FD (Dame Elizabeth Butler-Sloss, President): 2 July 2003

The mother applied for a maintenance assessment under the Child Support Act 1991, in respect of a child born in December 1986, naming the respondent as the father.

Although he had indicated possible paternity on a maintenance enquiry form he had thereafter failed to supply a blood sample for DNA testing.

Despite the mother's evidence that, although married to someone else, she had lived exclusively with the respondent from January to September 1986, the justices had refused to make a declaration of paternity citing the age of the child and the passage of time, together with the mother's marriage, as reasons for giving greater weight to the presumption of legitimacy than to the inference of paternity to be drawn from the respondent's refusal to undergo DNA testing.

The Secretary of State for Work and Pensions appealed on the grounds that the justices had erred in law in failing to follow the authorities and that they had come to an irrational conclusion on the facts.

David Forsdick (instructed by the Solicitor, Department of Work and Pensions) for the secretary of state; the respondent did not appear and was not represented.

Held, allowing the appeal and making the declaration sought, that the justices had failed to follow the clear guidance in In re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, 472, and In re G (Parentage: Blood Sample) [1997] 1 FLR 360, that the inference of paternity to be drawn from such refusal was 'virtually inescapable'; that the justices had no right to ignore that guidance and, in failing to follow it, had erred in principle.

Care proceedings - disclosure of confidential police information

In re W (Children) (Care Proceedings: Disclosure): FD (Mr Justice Wall): 11 July 2003

The local authority, having been told that a suspected drugs supplier was living at the mother's address but that they were not at liberty to disclose the information to any family members or their legal representatives since that might jeopardise both a large police operation and the informant's life, considered itself obliged to alert the mother to the allegations and sought directions about the extent to which it might disclose the information.

The matter was heard in private with leave to report on the basis that the anonymity of all parties, including legal representatives, should be preserved.

Held, making the directions sought, that having received confidential child protection information from the police, a local authority was obliged to investigate the issues to which the information related and to alert other parties as necessary, albeit in a way which did not breach the confidentiality of that information; that while the need to protect the integrity of the police investigation and the safety of the informant were powerful factors weighing against disclosure, in the interests of child protection, the mother needed to be told the substance of the allegations; and that, on the approach identified in Official Solicitor to the Supreme Court v K [1965] AC 201, 226, and recently endorsed by the Court of Appeal in In re M (Disclosure) [1998] 2 FLR 1028, the mother's advisers were entitled to know the wider picture, to be satisfied that the process had been fair and to see the evidence placed before the court provided they undertook not to pass on to the mother any information, other than the substance of the allegations, without the court's permission.